People v. Harden, Docket No. 94743

• Decision Date: 14 March 1988
• Docket Number: Docket No. 94743
• Citation: 166 Mich.App. 106,420 N.W.2d 136
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carey HARDEN, a/k/a Harden-Bey, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 136

420 N.W.2d 136

166 Mich.App. 106

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carey HARDEN, a/k/a Harden-Bey, Defendant-Appellant.

Docket No. 94743.

Court of Appeals of Michigan.

Submitted Dec. 16, 1987.

Decided Feb. 1, 1988.

Released for Publication March 14, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph S. Filip, Pros. Atty., and Jerrold Schrotenboer, Chief Appellate Atty., for the People.

James R. Rinck, Grand Rapids, for defendant-appellant.

Before HOOD, P.J., and SAWYER and JACKSON, ^* JJ.

SAWYER, Judge.

Defendant was convicted, following a jury trial, of two counts of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Thereafter, a second jury was impaneled which convicted defendant as a third felony offender under the habitual-offender statute. M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. The trial court thereafter sentenced defendant to three concurrent terms of 90 to 150 years in prison on the three counts, with those concurrent sentences to be served consecutively to any sentence defendant was then serving. The judgment of sentence also recommended that defendant never be paroled. Defendant appeals and we affirm.

Defendant's convictions arise out of the brutal robbery and murder of Edward and Janet Mroz on the afternoon of June 4, 1985, in their residence in Jackson County. Briefly, the victims' bodies were found by their daughter, Rhonda, when she returned from work on the afternoon of June 4. She found her stepfather lying in his bedroom, dead after having been stabbed eight times in the chest. The house was ransacked and some of Rhonda's jewelry was gone, as well as a Navy good-conduct medal earned by her brother, Scott MacKenzie. In addition, some $200 was missing from a bank envelope stored in a kitchen bookcase drawer. The police were summoned and investigators later found Mrs. Mroz's body in the bathtub, with a knife protruding from her chest.

On appeal, defendant raises several issues, which we consider in a slightly different order than presented by the parties.

I

We first consider defendant's argument that the trial court lacked jurisdiction to try defendant due to a violation of the 180-day rule. Defendant's trial commenced 238 days after arraignment. On appeal, defendant admits that forty-three days were attributable to him as a result of a motion to suppress. However, defendant argues that the remaining 195 days exceeds the jurisdictional time limit and that any delay is chargeable to the prosecution. Specifically, defendant charges the delay to the prosecution as a result of the prosecutor's taking an interlocutory appeal to the Supreme Court concerning an issue relating to a journalist who was unwilling to cooperate with the prosecutor in testifying. In fact, the Supreme Court, on October 25, 1985, issued a stay of proceedings pending the resolution of that collateral litigation concerning the witness. (Supreme Court Docket No. 77495).

This Court recently rejected the contention that delay caused by the prosecutor's pursuing an interlocutory appeal should be chargeable to the prosecutor for purposes of the 180-day rule. People v. Bradshaw, 163 Mich.App. 500, 415 N.W.2d 259 (1987). We see no reason to disagree with the Bradshaw decision and, therefore, hold that the delay caused by the prosecutor's seeking an interlocutory appeal in the case at bar to enforce the subpoena against the journalist witness is not delay chargeable to the prosecutor under the 180-day rule. Accordingly, the 180-day rule was not violated in the case at bar.

II

We next consider defendant's argument that the trial court improperly admitted into evidence the two $20 bills found in defendant's cassette tape recorder two days after the murders. At the time of the murders, defendant was an inmate at the minimum security facility in Jackson and had committed the murders while on a work program outside the prison. Apparently his absence was not noticed as he returned to prison that evening. However, two days later two $20 bills were found hidden in his cassette recorder. Prisoners are prohibited from possessing United States currency; rather, they must take prison tokens drawn against their prisoner accounts for any transaction in prison.

Before trial, the trial court granted a motion to suppress evidence of the two bills in light of defendant's claim that he had come into possession of the currency through other illicit means from a fellow prisoner. However, at trial the prosecutor presented additional evidence which tended to contradict defendant's explanation of how he had come into possession of the money. At that time, the trial court reversed itself and admitted the two bills into evidence.

A trial court's decision to admit or exclude evidence is a matter for the sound discretion of the trial judge and this Court will not overturn such rulings in the absence of an abuse of discretion. Guider v. Smith, 157 Mich.App. 92, 403 N.W.2d 505 (1987). After a review of the record, we can find no abuse of discretion by the trial court in determining that the bills were admissible.

III

Next, we consider whether the trial court erred in admitting the electrophoretic evidence obtained concerning the blood scrapings from the fingernails of the female victim. The scrapings from Mrs. Mroz's fingernails indicated that the blood under her fingernails was of a genotype consistent with defendant, his accomplice, and the victim herself. The blood was inconsistent with that of Mr. Mroz as well as another individual who, at one point, had been considered a suspect in the slayings. Defendant argues that, because the blood scrapings would be consistent with approximately sixty percent of the general population, the link to defendant was too tenuous to warrant admission. We disagree.

The recent case of People v. Finley, 161 Mich.App. 1, 410 N.W.2d 282 (1987), is directly on point. In Finley, this Court held that blood-typing evidence showing that the accused was included within a large class of possible perpetrators, while not sufficient by itself to convict the defendant, does have some incremental probative value which the jury may consider along with other evidence. Id. at 12, 410 N.W.2d 282. We agree. The blood-typing evidence in the case at bar, while certainly not dispositive of the issue of defendant's guilt, was relevant in that it was consistent with defendant's guilt and did exclude an alternative suspect. Moreover, its relevancy was heightened in light of the fact that defendant was the only suspect who had scratches on his left forearm after the incident. We believe that the trial court properly exercised its discretion in permitting the jury to consider this evidence.

IV

Next, we consider defendant's argument that he was deprived of a fair trial by the prosecutor's references to defendant's Islamic name and to the fact that defendant wore a fez. Defendant also objects to other comments made by the prosecutor during closing argument. However, there were no objections by defendant to the prosecutor's closing argument, with the exception of an objection to the reference to defendant's fez, with that objection being to relevancy rather than to improper argument as a comment on defendant's religion. Accordingly, defendant's argument before this Court has not been properly preserved for appeal. People v. Solak, 146 Mich.App. 659, 382 N.W.2d 495 (1985).

With respect to the one comment which is arguably preserved for appeal, the reference to defendant's fez, we do not see that as an impermissible comment on defendant's religious preferences. Rather, the prosecutor commented on the fez as a suggestion that defendant had stolen the Navy good-conduct medal which was missing from the victim's house for the purpose of wearing the medal with his religious garb. In any event, defendant did not object to the reference on the basis that it was an improper comment on his religion. Accordingly, we find no basis for reversing defendant's conviction based upon plaintiff's closing argument.

V

Defendant next argues that he was denied a fair trial by the trial court's deletion of paragraph 5 of CJI 16:2:01 from the instructions on first-degree murder and paragraphs 6 and 7 of CJI 4:2:02, concerning direct and circumstantial evidence.

With respect to the deletion of CJI 16:2:01(5), we believe that any error in the deletion of this instruction was harmless. Firstly, we note that that instruction is part of the instructions for first-degree murder. Defendant was not convicted of first-degree murder; rather, he was convicted of second-degree murder and he concedes that the second-degree murder instructions were accurate and complete. Secondly, the language of CJI 16:2:01(5) is repeated in CJI 16:3:01(5), which is given as part of the instructions on second-degree murder. CJI 16:3:01(5) was given to the jury in the second-degree murder instructions. Thus, the jury did hear the substance of that instruction at least once. For these reasons, we conclude that any deletion of the instruction as part of the first-degree murder instructions was, at most, harmless error. MCR 2.613(A); People v. Robinson, 386 Mich. 551, 562-563, 194 N.W.2d 709 (1972).

With respect to the omission of CJI 4:2:02(6) and (7) defendant failed to object at trial. Accordingly, the issue has been waived for...